Ashlock v. Vivell

Conger, J. The declaratioii in this case consists of two counts. The first an ordinary count in trover for the value of a horse. The second setting forth in detail the sale of a horse worth $250 by appellant to appellee, who was a minor, 'the giving of a note therefor, the concealment by appellee of his minority, and df an intention not to pay for the horse, the sale and conversion of the horse to appellee’s use, and his refusal to pay the note he had given. A demurrer was sustained to the second count. A plea of general issue was filed and also a second plea, averring that the plaintiff delivered the horse to the defendant under a contract of purchase, and in consideration of the delivery of the horse the defendant executed and delivered the promissory note described to the plaintiff; that defendant sold the horse, and at the time of making of the note and the sale of the horse the defendant was under twenty-one years of age, and that at the time the defendant arrived at the age of twenty-one years he did not have, and at no time since did he have, the possession of the horse or any part of the proceeds of the sale thereof. To this second plea a replication was filed, averring, in substance, that at the time of making the purchase the appellee did not intend to pay for said horse, and with such fraudulent intent upon his part not to pay for the horse, he, by such fraudulent means, procured the delivery to him of said horse, gave his note therefor with the fraudulent intent then formed not to pay said note, but defeat its payment by the plea of infancy, and that he took the horse to a foreign State, sold it and converted the proceeds to his own use; that he afterward refused to pay the note, whereupon appellant tendered him back his note and demanded his horse, etc. To this replication a general demurrer was filed and sustained by the court, and upon the trial that followed all the instructions of appellant based upon the theory of his replication were refused, and a verdict and judgment for appellee followed. Counsel for appellee cite a number of authorities upon the question of a minor falsely representing himself to be of full age, but we fail to see their application, except as authority to sustain the demurrer to the second count of the declaration, and as to the propriety of that ruling of the court we do not feel called upon to express an opinion. The second replication is based entirely upon the alleged fraudulent intent existing in the mind of the appellee, at the time of the pretended purchase, of never paying for the property. We are also referred by counsel for appellee to the following authorities as conclusive against the right of. recovery in the present case: Gooley on Torts, pp. 109, 110, says: “ There are some cases, however, in which an infant can not be held liable as' for a tort, though on the same state of facts a person, of full age and legal capacity might be. The distinction is this: If the wrong grows out of contract relations, and the real injury consists in the non-performance of a contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly, by counting on the infant’s neglect to perform it or omission of duty under it as a tort. The reason is obvious. To permit this to be done would deprive the infant of that shield of protection which, in matters of contract, the law has wisely placed before him.” Icl., pp. 106, 197. Chancellor Kent says: “ The fraudulent act, to charge him, must be wholly tortious, and a matter arising ex contractu, though infected with fraud, can not be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action.” 2 Kent’s Com. p. 277, 10th Ed. ' But this case as presented by the replication does not consist in a failure to perform a contract, but alleges that appellee became possessed of the horse by fraudulently going through the forms of a contract of purchase, when, in fact, no contract was ever made. In Farwell v. Hauchett, 120 Ill. 577, our Supreme Court, while holding that one purchasing goods with an intent not to pay for them gets no title, uses the following language: “ The fraudulent vendee is not considered as a purchaser of the goods, but as a person who has tortiously got possession of them.” If an infant vendee obtains possession of goods through the pretense of a purchase, but intending at the time not to pay for them, there is, in fact, no contract executed between himself and his vendor. Their minds never meet. The transfer of possession as made by the vendor is based upon a supposed contract of sale, while such possession is received by the vendee Fraudulently and tortiously. If the vendor knew the secret intentions of the vendee, he would no more surrender his property than he wrould to one seeking to take it from him by violence and without right. Hence, an action to recover damages for such a tort is not an attempt to enforce the contract indirectly hy counting on the infant’s refusal to perform it, for no contract existed; but a recovery is sought for the damages occasioned by the wrongful and fraudulent act of the infant. Such a case is to he distinguished from one where an infant vendee, hy virtue of an agreement, made at the time in good faith, to purchase and pay for goods, acquires their possession, and when sued for the purchase price pleads his infancy to defeat a recovery. In the latter case he has made a contract, which he may legally avoid if he desires; but in the former he neither made nor intended to make any contract, but obtained the possession of the property by fraud. Tyler on Infancy and Gov., page 183, Sec. 125; Rice v. Boyer, 108 Ind. 479; Kellogg v. Turpie, 93 Ill. 266. We think the demurrer to the second replication should ' have been overruled. The judgment of the Circuit Court will be reversed and the cause remanded. Reversed and remanded.